Citation Nr: 1007707 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-25 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection of a low back disorder, to include spondylolisthesis at L5-S1, and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and her friend ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from August 1992 to December 1994 and from August 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2009, the Veteran and her friend presented hearing testimony before the undersigned at the RO. The transcript of the hearing is associated with the claims file and has been reviewed. The Board received additional evidence from the Veteran at the hearing, which was accompanied by a waiver of her right to initial RO consideration of the new evidence. 38 C.F.R. §§ 19.9, 20.1304(c). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. During the course of this appeal, service records pertaining to the Veteran's second period of active military service were associated with the claims folder. Specifically, the Veteran provided copies of service treatment records (STRs) from Camp Arifjan in Kuwait dated from May 2005 to September 2005 as well as DA Form 2173, Statement of Medical Examination and Duty Status, dated in May 2005. The Board also notes that the RO found the Veteran's claim to be reopened by way of the submission of new and material evidence, in part, due to the submission of the additional service records. See June 2007 Statement of the Case (SOC). These service records were not before VA at the time of the final February 1995 RO rating decision that previously denied the Veteran's claim for a low back disorder. See 38 C.F.R. § 20.1103. Under 38 C.F.R. § 3.156(c), if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim rather than a request to reopen a previously disallowed claim. Although the service records contain evidence pertinent to the Veteran's claim, they were not in existence at the time of the February 1995 rating decision as they pertain to the Veteran's second period of active duty from August 2004 to January 2006. Consequently, the issue is properly considered as a request to reopen a previously disallowed claim, rather than an original claim, as is reflected on the first page of this decision. FINDINGS OF FACT 1. In an unappealed February 1995 rating decision, the RO denied the Veteran's claim of service connection for a low back disorder, on the basis that the Veteran's STRs did not show injury or disease of the Veteran's lower back although a subjective history of weak lower back was noted on the separation examination. The RO further explained that the February 1995 VA examination was remarkable for x-ray evidence of spondylolisthesis of L5 and S1, usually a developmental abnormality; however, there was no remarkable functional impairment, nerve damage, or limitation of motion to show that the condition was made worse during the Veteran's military service. 2. The RO's February 1995 rating decision is final. 3. Evidence received subsequent to the February 1995 rating decision relates to an unestablished fact necessary to substantiate the claim. 4. The evidence shows that the Veteran's pre-existing spondylolisthesis underwent an increase in severity beyond normal progression due to her working conditions during her second period active military service. CONCLUSIONS OF LAW 1. The February 1995 RO rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994). 2. New and material evidence has been presented, and the claim of entitlement to service connection of a low back disorder, to include spondylolisthesis at L5-S1, is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2009). 3. The Veteran's pre-existing spondylolisthesis at L5-S1 was aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). For reasons explained in greater detail below, the Board finds the Veteran's claim to be reopened by way of the submission of new and material evidence and, further, finds that service connection for the Veteran's claimed low back disorder is warranted. Thus, in light of the full grant of the benefits sought on appeal, the Board finds that any possible errors on the part of VA that may exist in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot. To the extent that there are any defects regarding VA's duty to notify and assist, they will be addressed by the Agency of Original Jurisdiction (AOJ) when effectuating the award of benefits. II. New and Material Evidence As noted above, the RO determined that new and material evidence sufficient to reopen the claim had been presented and reopened the Veteran's claim on such basis. However, the Board notes that in Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. In the present case, the Veteran's request to reopen her previously disallowed claim was filed in March 2006. Effective from August 29, 2001, "new" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). As a preliminary matter, the Board notes that the Veteran's current claim involving a low back disorder is based upon the same factual basis as her previous claim (i.e., they are both claims for the same diagnosed low back disorder), which was denied in the February 1995 rating decision that became final. As such, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). The RO initially denied the Veteran's claim for a low back disorder in its February 1995 rating decision. In denying the claim, the RO explained that the Veteran's STRs did not show an injury or disease of the lower back although the Veteran acknowledged a history of "weak" lower back at separation. The RO also noted that the February 1995 VA examination was remarkable for x-ray evidence of lumbosacral disc impairment, specifically, spondylolisthesis at L5-S1, usually a developmental abnormality. However, the VA examination also showed no remarkable functional impairment, nerve damage, or limitation of motion to show that the Veteran's low back disorder was made worse during military service. Consequently, the RO found no basis for the award of service connection for the Veteran's low back disorder under the law. The Veteran received notification of the rating decision and her appellate rights in March 1995; however, she did not appeal the decision. Thus, the February 1995 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994). The pertinent evidence of record at the time of the February 1995 rating decision included the Veteran's STRs for her first period of active service and the February 1995 VA medical examination report. The February 1995 VA medical examination report includes a diagnosis of history of low back strain with first degree spondylolisthesis of L5 over S1. The evidence received since the February 1995 denial of the Veteran's claim consists of copies of STRs provided by the Veteran pertaining to her second period of active service, the DA Form 2173, Statement of Medical Examination and Duty Status, dated May 2005, the DD Form 214 pertaining to the second period of active service, post-service treatment records and related medical correspondence dated from October 1997 to August 2009, the VA Form 119 dated in May 2007 relating that the Veteran's complete STRs are unable to be located, the September 2009 Travel Board hearing transcript, lay statements from a fellow soldier and friends of the Veteran dated in August 2009, and additional written statements submitted by the Veteran and his representative. Upon review of the evidence received since February 1995, the Board finds that it does qualify as new and material evidence and is, therefore, sufficient to reopen the claim. In this regard, copies of the service records provided by the Veteran concerning her second period of active duty show treatment for low back pain. The DA Form 2173 dated in May 2005 reveals that the Veteran received outpatient treatment for anterior subluxation of L5-S1 and low back pain with sciatic symptoms due to chronic wearing of gear and driving. The injury was considered to be temporary and to have been incurred in the line of duty. The STRs also include findings of lumbar spondylosis and spondylolisthesis. Also, the Board notes that the Veteran, in a September 2005 statement, explained that her duties included driving M915 tractor trailers on convoys in Kuwait and Iraq and, while driving the vehicle, she was required to wear a flack vest and Kevlar at all times. She stated that the vest configuration and seated position coupled with rough road conditions exposed her lower back to frequent pounding and pressure. She reported that, in February 2005, her pain became so intense that she had difficulty getting out of bed and walking any distance over 400 meters. She added that she started to experience severe sciatica pain on her right side at that time and did not have any back or sciatica pain before her deployment. The Veteran later reiterated, in her July 2007 VA Form 9, that her low back disability was aggravated during her second period of active service while serving in Iraq. The Veteran wrote that the type of back pain that she had in Iraq was unlike any pain she had previously experienced and the pain had continued since her deployment. In September 2009, the Veteran presented hearing testimony before the undersigned wherein she similarly related that she was required to wear a significant amount of gear and drive a 915 tractor trailer in rough conditions during her missions in Iraq and Kuwait and, during that time, her low back pain became worse and she began to have sciatic symptoms. She reported that the symptoms did not improve despite being prescribed anti-inflammatories and undergoing physical therapy. She added that the symptoms had continued since her deployment. The Veteran is considered competent to report an increase in back pain during her second period of active service in the above statements and hearing transcript and her account of worsened low back symptomatology during the aforementioned period is presumed credible for the purposes of reopening the claim. Additionally, a fellow soldier (D.C.) who served with the Veteran and first met her while deployed to Camp Arifjan, Kuwait in support of Operation Iraqi Freedom in December 2004 provided a statement dated in August 2009 regarding the Veteran's in-service back pain. In his statement, D.C. wrote that he recalled being impressed with the Veteran's abilities as a runner and became running workout partners with the Veteran from January to July 2005. He stated that the Veteran told him in February 2005 that her back was sore following her return from a 5-day mission in Iraq and, later, following subsequent missions to Iraq and Kuwait, the Veteran told him that her back was getting worse. D.C. also noted that he encouraged the Veteran to go to the clinic to receive treatment for her back. He commented that the doctors and staff all agreed that the excessive weight of the Outer Tactical Vest (OTV) and Ballistic Helmet compounded with the long driving miles and unimproved road conditions in Iraq were creating her problems and reported that he was at the clinic with the Veteran when doctors prescribed anti- inflammatories for her back disability. D.C. further noted that he witnessed her back pain on two occasions when the Veteran was doing an abdominal workout and noticed that she struggled through a 5 kilometer (KM) race that took place in June 2005 due to complaints of back pain. D.C. is considered competent to report his observation of the Veteran's back pain during her second period of active service in the above statement and his account is presumed credible for the purposes of reopening the claim. Furthermore, two of the Veteran's friends (A.M. and A.H.) provided written statements dated in August 2009. Also, A.H. presented hearing testimony at the September 2009 Travel Board hearing. The Veteran's friends essentially related that they knew the Veteran prior to her deployment and noticed that she did not complain of back problems until after her return from such deployment. The Veteran's friends are considered competent to report their observations of the onset of the Veteran's complaints of back pain in the above statements and hearing transcript and their accounts are presumed credible for the purposes of reopening the claim. Moreover, the Veteran's treating physician (R.T., M.D.) provided a statement dated in August 2009 wherein he provided a summary of the Veteran's medical history pertaining to her back as related by the Veteran and certain medical records, noted that the Veteran's low back disability was an acquired rather than congenital deformity of the spine, and concluded that her working conditions in the military caused an accelerated progression beyond what would typically be expected in an adult with a grade I L5-S1 spondylolisthesis. Dr. R.T. is a physician and is competent to provide a medical opinion regarding the cause of the progression of the Veteran's low back disability. His opinion is presumed credible for the purposes of reopening the claim. In summary, the evidence discussed above that has been associated with the claims folder since the February 1995 denial is both new and material because it was not before VA at the time of that decision and relates to a previously unestablished fact necessary to substantiate the Veteran's claim. Specifically, it contains competent lay and medical evidence pertaining to the Veteran's complaints of increased back pain and related treatment during her second period of active military service and includes a competent medical opinion that links the aggravation of the Veteran's low back disability to her second period of active service. Accordingly, because the Board has determined that new and material evidence has been presented, the Veteran's claim of entitlement to service connection for a low back disorder is reopened. As explained above, no additional notice or development is needed in regard to the claim. Thus, the Board will proceed to adjudicate the merits of the claim. III. Facts and Analysis The Veteran seeks service connection for a low back disorder, claimed as spondylolisthesis at L5-S1, on the basis that it was aggravated during her second period of active military service, which included service in Iraq and Kuwait. In this regard, the Veteran has reported that her claimed low back disorder was diagnosed in 1995, prior to her second period of active duty. However, she contends that, while performing her duties as a motor transport operator, she was required to drive tractor trailers on rough roads and to wear a flack vest and Kevlar. As a result, she asserts that she was exposed to frequent pounding and pressure of her lower back and, consequently, her lower back disability was aggravated. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999); Cuevas v. Principi, 3 Vet. App. 542 (1992); Cuevas v. Principi, 3 Vet. App. 542 (1992). A Veteran is presumed to have been in sound condition at the time of acceptance for service, except for defects, infirmities, or disorders noted at that time or where clear and unmistakable evidence demonstrates that the disability or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3- 03. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet.App. 398, 402 (1995) (providing that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Generally, congenital or developmental defects are not diseases or injuries within the meaning of applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c). VA's General Counsel has held, however, that service connection may be granted for diseases, but not for defects, of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. Additionally, according to the VA General Counsel's opinion, a congenital or developmental defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. A defect is a structural or inherent abnormality or condition that is more or less stationary in nature. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. VAOPGCPREC 82-90. The Board notes that the evidentiary record reveals that the Veteran was diagnosed with lumbar spondylolisthesis, a congenital or developmental defect of the spine, prior to her second period of active service. See February 1995 VA examination report; see also April 2006 private neurosurgical record, p. 2 and the August 2009 letter written by Dr. R.T. Although the Veteran's STRs are incomplete in this case, the DD Form 214 for her second period of active service lists her military occupational specialty (MOS) as motor transport operator. Available STRs provided by the Veteran show that she received treatment at Camp Arifjan in Kuwait for low back pain in 2005. During that time, she reported low back pain and sciatic symptoms, which she attributed to wearing her flak jacket and driving a semi-truck on rough roads while performing her duties as a motor transport operator. Medical examiners attributed the Veteran's low back symptomatology to lumbar spondylosis and spondylolisthesis. Also, the DA Form 2173 dated in May 2005 reveals that the Veteran received outpatient treatment for anterior subluxation of L5-S1 and low back pain with sciatic symptoms due to chronic wearing of gear and driving. Post-service treatment records in the months following service document the Veteran's continued medical treatment for lower back pain and related symptomatology. Notably, the Veteran consistently related the onset of such symptomatology to her second period of active military service. The Veteran is considered competent to report the onset of her worsened low back pain with radiating symptoms and the Board finds her account credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). In addition, the lay statements provided by the soldier who served with the Veteran as well as her two friends discussed above essentially relate that the Veteran was very physically active and did not experience low back pain until her second period of active duty, which she has had since that time. Their statements are deemed credible and lend further support to the Veteran's account of worsened low back symptomatology in service. Furthermore, as stated above, one of the Veteran's treating physicians, Dr. R.T., provided a statement dated in August 2009 wherein he concluded that the Veteran's working conditions in the military caused an accelerated progression of her grade I L5-S1 spondylolisthesis, an acquired deformity of the spine. He provided a thorough summary of the Veteran's medical history based on his review of certain medical records provided by the Veteran as well as based on her reported history. His summary is shown to be consistent with the record. Additionally, Dr. R.T. provided a sound rationale in support of his conclusion referencing medical literature and the clinical documentation pertaining to the progression of the Veteran's disability. In light of the foregoing, the Board affords the private medical opinion provided by Dr. R.T. great probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). The Board notes that another treating physician (L.M.S., M.D.) wrote in April 2006 that the Veteran almost certainly demonstrated a stable grade II spondylolisthesis. He further indicated that the Veteran's lifestyle of engaging in certain activities such as running may tend to exacerbate the Veteran's disability. Dr. L.M.S.'s statements suggest that the Veteran's low back disability did not undergo a permanent increase in severity as a result of service. However, unlike Dr. R.T., it does not appear that Dr. L.M.S. reviewed any prior treatment records or otherwise had sufficient data pertaining to the Veteran's medical history as it relates to her lower back. As such, the Board affords the above private medical opinion provided by Dr. R.T. greater probative value than the opinion provided by Dr. L.M.S. in resolving the medical question of whether the Veteran's preexisting lower back disability was aggravated by active military service. Therefore, in summary, the most probative evidence shows that the Veteran injured her lower back while driving tractor trailers on rough roads and wearing heavy gear in service and her pre-existing lumbar spondylolisthesis subsequently underwent an increase in severity as manifested by lower back pain and sciatic symptomatology. The evidence additionally shows that the Veteran's worsened low back symptomatology has been attributed to her working conditions in the military and characterized as an accelerated progression of her grade I L5-S1 spondylolisthesis by a competent medical professional. The increase in severity of the Veteran's low back disability is not shown to be due to the natural progress of the condition. Thus, in consideration of the foregoing, the Board finds that service connection for the Veteran's spondylolisthesis at L5-S1 is warranted. ORDER New and material evidence has been presented, and the Veteran's claim of entitlement to service connection for a low back disorder, to include spondylolisthesis at L5-S1, is reopened. Entitlement to service connection for spondylolisthesis at L5-S1 is granted. ______________________________________________ D. B. WEISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs